Phelps v. Phelps

17 Md. 120 | Md. | 1861

Goldsborough, J.,

delivered the opinion of this court.

This was an action of ejectment, instituted in the circuit court for Anne Arundel county, by the appellant against the appellee, to recover a tract of land called “Addition to Timber Ridge,” lying in said county. There are two demises in the plaintiff’s nar., one by Ebenezer T. Phelps, on the 1st day of January 1853, to the plaintiff, for twenty years, the other by John Stewart, on the 1st day of October 1848, for a like period. The appellee appeared, entered into the consent rule, admitted lease, entry and ouster, pleaded not guilty, and the appellant joined issue thereon. At the April term, 1858, of the circuit court, the case was submitted on the admitted statement of facts set forth in the record, and at the following term the court gave judgment for the appellee, from which the appellant appealed to this court.

By reference to the deed, made a part of the statement of facts, it will be seen that the property claimed by the appellant was conveyed by Richard Phelps and James Phelps, the father of Ebenezer Phelps, to Walter Phelps and his wife, Margaret, during their lives, and the life of the survivor, and on the death of the survivor, then to Walter Phelps, Joshua Phelps, Ebenezer T. Phelps, the three sons of James Phelps, one of the grantors, and their heirs and assigns forever. After the death of Margaret, who survived her husband, James, one of the grantors, and the father of Walter, Joshua and Ebenezer Phelps, to whom the deed had given the remainder in fee, took possession of the land in dispute, his three sons being all minors and living with him. James continued in possession until his death, in 1847. Two of the sons, Walter and Joshua, had in the meantime died, intestate, unmarried and without children, leaving Ebenezer, their only surviving brother of the whole blood.

If, therefore, the deed was operative to convey the fee-simple to the three brothers, then Ebenezer was entitled to the whole, as surviving joint tenant. He would be equally entitled to the whole as sole heir at law, the three brothers having acquired the title to the property by purchase, and not by descent. See Act of 1820, ch. 191, sec. 1.

The appellee, however, insists “that the three sons of James Phelps, before mentioned, not being technical parties to the deed, which can be treated only as an ‘indenture,’ can take no estate by such conveyance.”

The attempt to apply to this case the distinction between “deed-poll” and “indenture,” we think must fail.

The execution, acknowledgment and enrollment of the deed, made it obligatory on the grantors, and one enrollment is an acceptance by all the parties claiming under it, unless the contrary is shown. Hutchins, et al., vs. Dixon, Excr. of Hooper, 11 Md. Rep., 41, and the cases there cited. It was properly said, in argument, that “for many years courts have gradually abandoned the nice distinctions between rights of parties created by indenture and deed-poll, and the Act of 1794, ch. 57, was evidently passed with this object in view.” But beside this, there are direct decisions which support the doctrine that parties may take by way of remainder, though strangers to the deed. See 2 Hills' (S. C.) Rep., 439. 2 Hillard's Real Pro., 265, et seq.

In this case the grantors are Richard and James Phelps, and the parties to take in remainder are the children of James. The appellee is also the child of James, by a different marriage. If this deed be an indenture, James, as one of the grantors, is concluded by it from denying the title created in favor of his children ; and the appellee claiming through him is equally estopped.

One of the points made by the appellee’s counsel is, that the deed filed in this cause, as evidence of the appellant’s title, has not been located on the plats, nor is there any evidence to prove that the land the appellant claims is the land described in the deed.

In our opinion this point is not well made. We find by the statement of facts, that it is agreed “that the land in controversy between the parties to this cause, is properly located on the plats in the cause.” And though the deed mentioned in the statement of facts is not located, because there are no courses mentioned in it, yet if it refers to another deed which does contain them, it makes the deed referred to a part of the first deed, and if the location is correspondent with the deed containing the courses, it gratifies the law, upon the principle that if there be a reference in the description to something aliunde, a recourse to which will establish the certainty of the premises, such demonstrable certainty will suffice.

As to the second question, the title of John Stewart, the permanent trustee of Ebenezer Phelps: — we think his title cannot be questioned. The Act of 1829, ch. 208, on which the appellee’s counsel mainly relies, though vesting the title to the insolvent’s property in theprovisional trustee, without the necessity of such insolvent’s executing a deed therefor, and entitling such trustee or trustees to use all lawful means for the recovery thereof, yet that law does not disturb the authority of the court to appoint a permanent trustee; and in tbis case that authority was, in fact, exercised. To facilitate the objects of the insolvent laws, those laws have wisely given to the trustee, appointed by the court, the entire management of the insolvent’s estate, subject, of course, to the control of the court by whom he is appointed.

(Decided March 27th, 1861.)

The whole current of authorities, which we cannot disregard, settles the doctrine that the permanent trustee supersedes the provisional trustee, and that the property of the insolvent passes into his hands, with the title thereto, by operation of law, in the absence of a deed conveying the same. See Waters vs. Dashield, 1 Md. Rep., 472, and the Acts of Assembly and cases there cited by the court.

Judgment reversed, and, judgment for the appellant for the premises described in the declaration, and costs.